Citation Nr: 0908237
Decision Date: 03/05/09 Archive Date: 03/12/09
DOCKET NO. 03-20 983 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for degenerative arthritis
of the right shoulder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
K. Hudson, Counsel
INTRODUCTION
The Veteran had creditable active service from May 1969 to
August, 1971. The record also establishes that the Veteran
received a discharge under other than honorable conditions
for a period of service from August 1971 to October 1974.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a regional office (RO) rating decision
of June 2002. In November 2004, the appellant appeared at a
videoconference hearing held before the undersigned. The
remaining issue of service connection for degenerative
arthritis of the right shoulder was previously remanded in
September 2005 and June 2008.
FINDING OF FACT
Degenerative arthritis of the right shoulder was first
manifested several years after service, and is not related to
service, or to service-connected right femur fracture
residuals, or degenerative joint disease of the knees, right
hip, or lumbosacral spine.
CONCLUSION OF LAW
Degenerative arthritis of the right shoulder was not incurred
in or aggravated in active service, nor is such proximately
due to or aggravated by service-connected left toe, foot,
ankle, and/or knee disabilities. 38 U.S.C.A. §§ 1110, 1112,
1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A.
§§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp.
2008)), imposes obligations on VA in terms of its duties to
notify and assist claimants. In April 2001, the Veteran was
notified that his claim, previously denied as not well-
grounded in a June 2000 rating decision, was being
reconsidered under the VCAA.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). In the April 2001 letter, prior to the VCAA de
novo adjudication of the claim, the RO advised the claimant
of the information necessary to substantiate a claim for
service connection, and of his and VA's respective
obligations for obtaining specified different types of
evidence. He was notified of the service incurrence, current
disability, and nexus elements of a service connection claim.
He was advised of various types of lay, medical, and
employment evidence that could substantiate the various
elements of his service connection claim. Later, in a letter
dated in September 2005, he was provided an updated letter
regarding those factors. In addition, he was provided notice
of the elements required to substantiate a secondary service
connection claim, including by aggravation. The claim was
subsequently readjudicated by means of a supplemental
statement of the case in January 2008. Therefore, any timing
defect in the provision of this aspect of the notice was
harmless error. See Prickett v. Nicholson, 20 Vet. App. 370
(2006). Although he was not provided information regarding
ratings and effective dates, as to this specific claim, there
is no rating or effective date to be assigned as a result of
this decision; it was harmless error to have omitted notice
as to these elements. See Dingess v. Nicholson, 19 Vet. App.
473 (2006). Hence, the VCAA notice requirements have been
satisfied. See 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159.
With respect to the duty to assist, the service treatment
records have been obtained, as have VA treatment records. VA
examinations as to nexus were provided, as to all theories of
entitlement which have been raised. 38 U.S.C.A.
§ 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); see McLendon v.
Nicholson, 20 Vet. App. 79 (2006); see also Dalton v.
Nicholson, 21 Vet.App. 23 (2007). He testified at a Board
videoconference hearing. He has not identified the existence
of any potentially relevant evidence which is not of record.
Thus, the Board also concludes that VA's duty to assist has
been satisfied.
Thus, the Board finds that all necessary development has been
accomplished, and therefore appellate review may proceed
without prejudice to the appellant. See Bernard v. Brown, 4
Vet. App. 384 (1993). Significantly, neither the appellant
nor his representative has identified, and the record does
not otherwise indicate, any additional existing evidence that
is necessary for a fair adjudication of the claim that has
not been obtained. Hence, no further notice or assistance to
the appellant is required to fulfill VA's duty to assist the
appellant in the development of the claim. Smith v. Gober,
14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir.
2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see
also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
II. Service Connection
Service connection may be established for chronic disability
resulting from disease or injury incurred in or aggravated by
service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service
connection may be granted on a presumptive basis for certain
chronic diseases, including osteoarthritis, if the disability
was manifested to a compensable degree within one year of
separation from service. 38 U.S.C.A. §§ 1110, 1112(a)(1),
1113, 1131; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). If there is
no showing of a chronic condition during service, then a
showing of continuity of symptomatology after service is
required to support a finding of chronicity. 38 C.F.R.
§ 3.303(b). Generally, to establish service connection,
there must be (1) medical evidence of a current disability,
(2) medical evidence, or in certain circumstances lay
testimony, of in-service incurrence or aggravation of an
injury or disease, and (3) medical evidence of a nexus
between the current disability and the in-service disease or
injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999).
Under section 3.310(a) of VA regulations, service connection
may be established on a secondary basis for a disability
which is proximately due to or the result of service-
connected disease or injury. 38 C.F.R. § 3.310(a).
Establishing service connection on a secondary basis requires
evidence sufficient to show (1) that a current disability
exists and (2) that the current disability was either (a)
proximately caused by or (b) proximately aggravated by a
service-connected disability. Allen v. Brown, 7 Vet. App.
439, 448 (1995) (en banc). Where a service-connected
disability aggravates a nonservice-connected condition, a
veteran may be compensated for the degree of disability (but
only that degree) over and above the degree of disability
existing prior to the aggravation. Allen, 7 Vet. App. at
448. Temporary or intermittent flare-ups of symptoms of a
condition, alone, do not constitute sufficient evidence
aggravation unless the underlying condition worsened. Cf.
Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002);
Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991).
The provisions of 38 C.F.R. § 3.310 were amended, effective
from October 10, 2006; however, the new provisions require
that service connection not be awarded on an aggravation
basis without establishing a pre-aggravation baseline level
of disability and comparing it to current level of
disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although
the stated intent of the change was merely to implement the
requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the
new provisions amount to substantive changes to the manner in
which 38 C.F.R. § 3.310 has been applied by VA in Allen-type
cases since 1995. Consequently, the Board will apply the
older version of 38 C.F.R. § 3.310, which is more favorable
to the claimant because it does not require the establishment
of a baseline before an award of service connection may be
made.
In order to establish entitlement to service connection on
this secondary basis, there must be (1) evidence of a current
disability; (2) evidence of a service-connected disability;
and (3) medical evidence establishing a nexus (i.e., link)
between the service-connected disability and the current
disability. See Wallin v. West, 11 Vet. App. 509, 512
(1998).
The Veteran contends that he has arthritis of the right
shoulder which spread from his other service-connected
orthopedic conditions. In essence, he contends that the
arthritis is all part of the same disease process, and, thus,
of a single etiology. Thus, he feels that the arthritis in
the shoulder is related to service-connected arthritis
present in lumbosacral spine, right hip, and bilateral knees,
and that it all began with his service-connected femur
fracture residuals. He also contends that symptoms of
arthritis of the right shoulder were present in service, and
have been since the jeep accident.
Service treatment records show that in November 1970, the
Veteran sustained a transverse fracture of the midshaft of
the right femur in a jeep accident. reportedly, a jeep had
overturned, throwing him out. No complaints pertaining to
the right shoulder were noted in the hospital record. On a
medical history obtained in connection with an examination in
April 1971, the Veteran responded "yes" to a question of
whether he had now, or had ever had, "painful or 'trick'
shoulder or elbow." On the September 1974 separation
examination the Veteran reported right shoulder pain and
"popping" since 1970. X-rays of the right shoulder were
negative. In October 1974, he complained of a sore left
shoulder. As noted above, the period of service from August
1971 to October 1974 was determined to be under dishonorable
conditions, and, hence, a bar to VA compensation benefits, in
a VA administrative decision dated in June 1975.
After service, the Veteran sought treatment at a VA facility
in January 1975, complaining of much joint trouble. He was
to have X-rays of several joints, including the right
shoulder, and then be seen in the orthopedic clinic. X-rays
of both shoulders were normal. The orthopedic consult noted,
as pertinent, that the Veteran complained of a painful
shoulder; however no abnormal findings or a clinical
impression were noted.
The Veteran did not mention a right shoulder condition on his
initial application for VA compensation filed in December
1977. In connection with that claim, the Veteran submitted a
January 1978 report of an evaluation from W. McCraney, Jr.,
M.D., regarding multiple joints, which mentioned the left
shoulder but not the right.
On a VA examination in January 1978, the Veteran stated that
he pulled a muscle in the left shoulder and mentioned a
popping shoulder. He said he hurt his shoulder when he broke
his leg, but did not identify the shoulder. X-rays of both
shoulders disclosed no significant abnormalities.
VA outpatient treatment records show that in January 1983,
the Veteran complained of pain in multiple joints, including
the shoulders. There was no synovitis, and the impression
was fibrositis. Chronic pain was noted in June 1987. In
October 1988, it was noted that he had some features of
fibromyalgia.
Records obtained from Social Security Administration (SSA)
include a decision on a claim for supplemental security
income dated in May 1988, as well as the medical evidence
used in that decision. According to the decision, an
examination in August 1987 by R. Bass, M.D., had shown a mass
the size of a grape on the right shoulder, and this was
included in the list of the Veteran' disabilities noted in
the SSA decision. However, the report of the August 1987
examination by Dr. Bass shows that a mass about the size of a
grape was shown over the left shoulder, with the remainder of
the upper extremity examination noted to be unremarkable.
VA treatment records show that in July 1993, the Veteran
complained of multiple joint pains, including the right
shoulder. On examination, the joints were essentially normal
but voluntary elements precluded an ideal examination. There
was full range of motion without synovitis in multiple joints
including the shoulders, and no inflammatory arthropathy; a
strong functional component was suspected. In October 1993,
it was noted that the Veteran was awaiting removal of a left
shoulder lipoma until a right shoulder bursitis healed.
In September 1997, a VA examination of multiple joints,
including the shoulders, was conducted. The specific
complaints, however, referred only to the left shoulder. On
examination, the Veteran refused to attempt any range of
motion studies, but passive range of motion studies were
normal in both shoulders with mild crepitus.
On an Agent Orange protocol examination in March 2001, the
Veteran reported having fractured his femur in a fall off a
cliff in service. He reported arthritis in multiple joints,
including the shoulders, and had limitation of motion with
pain. Muscle strength, however, was 5/5 in the upper
extremities. The pertinent diagnosis was degenerative
arthritis.
In August 2001, the Veteran was seen in a VA facility,
complaining of pain in multiple joints, including the
shoulders, which he said had been bothering him since 1982.
In September 2001, he reported that the pain had become
severe since last week. He said he had a history of
degenerative joint disease in all of his bones. X-rays of
the right shoulder in September 2002 disclosed mild arthritis
changes of the acromioclavicular joint, with the right
shoulder otherwise normal. X-rays in July 2005 disclosed
mile degenerative joint disease of the acromioclavicular
joint in both shoulders, left greater than right.
In July 2005, the Veteran was evaluated in a VA rheumatology
clinic, complaining of arthritis from head to toe. He was
referred for evaluation of serum negative spondyloarthritis-
peripheral joint arthritis. On examination, there was no
clear synovitis. The examiner noted that it was difficult to
tell by history and examination if the arthritis was
degenerative, related to old trauma, or had an inflammatory
component. Further testing was recommended. When seen for
follow-up the assessment was degenerative joint
disease/fibromyalgia, inflammatory joint disease unlikely.
On a VA examination in November 2005, the Veteran stated that
he sustained a fracture of his right femur in November 1970
in a jeep accident while on active duty. He states that
around 1971 he developed right shoulder pain. He thinks that
he injured it during basic training in a fall, and that he
has had problems with his right shoulder ever since that
time. He complained of loss of motion due to pain. The
examiner was unable to carry out range of motion testing due
to complaints of severe pain, but the examiner noted that his
symptoms we not supported by the objective findings, and,
thus, true range of motion could not be determined. X-rays
showed some degenerative changes in the acromioclavicular
joint of the right shoulder. The examiner did not believe
that arthritis would be related to a fractured femur, as
acromioclavicular arthritis is not caused by or a result of a
femur fracture.
In an addendum to the examination dated in October 2007, the
examiner stated that review of the Veteran's claims file,
including service treatment records and the previous
examination disclosed that X-ray of the right shoulder in
September 1974 was negative. The examiner concluded that the
acromioclavicular arthritis in the right shoulder was not
caused by, or a result of, his active duty.
In February 2008, VA received a letter from the Veteran in
which he stated that he was treated at a VA medical center
(VAMC) 5 days previously. He further noted that the VA
physician had told him that the arthritis in his spine and
knee had spread to his right shoulder.
The February 2008 treatment record notes "serum-negative
spondyloarthritis and peripheral joint arthritis:
rheum[atology] feels DJD/fibromyalgia, inflammatory joint
[disease] unlikely; has pain in neck, shoulders, knees,
etc." X-rays of both shoulders in February 2008 disclosed
moderate hypertrophic changes in the left shoulder. He was
seen for a pain evaluation in March 2008, at which time he
reported worse pain in the shoulder but also diffuse pain in
other joints, which was noted to sound like osteoarthritis.
The assessment was chronic joint
pain/osteoarthritis/degenerative joint disease.
In light of the Veteran's statement, in October 2008 a VA
examination was conducted, to determine whether arthritis of
the right shoulder was secondary to service-connected
arthritis of the lumbar spine, knees, and hip. The Veteran
said that he went over a 100-footcliff in an open jeep in
service, and broke his right femur and also had a hole in the
right side of his head; now he states that he has arthritis
from head to toe. Examination of the right shoulder revealed
limitation of motion, with complaints of pain throughout all
range of motion testing, with guarding throughout the
examination secondary to pain. The examiner wished to get a
magnetic resonance imaging (MRI) scan, but the Veteran
refused, stating he would be unable to tolerate it due to the
pain from lying in the scanner. X-rays in February 2008
disclosed moderate hypertrophic changes in the left shoulder.
Based upon a review of the evidence of record the examiner
concluded that his right shoulder arthritis was not caused
by, secondary to, or aggravated by his service-connected
arthritis of the lumbar spine, knee, or hip. The examiner
explained the arthritis in the shoulder was degenerative in
nature, and associated with the wear and tear of aging.
The Veteran contends that he has arthritis of the right
shoulder which spread from his other service-connected
orthopedic conditions. In essence, he contends that the
arthritis is all part of the same disease process, and, thus,
of a single etiology. Thus, he feels that the arthritis in
the shoulder is related to service-connected arthritis
present in lumbosacral spine, right hip, and bilateral knees,
and that it all began with his service-connected femur
fracture residuals. He also contends that symptoms of
arthritis of the right shoulder were present in service, and
have been since the jeep accident.
The Board must assess the credibility and weight of all the
evidence, including the medical evidence, to determine its
probative value, accounting for evidence which it finds to be
persuasive or unpersuasive, and providing reasons for
rejecting any evidence favorable to the claimant. Madden v.
Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied,
523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362,
367 (2001). Equal weight is not accorded to each piece of
evidence contained in the record; every item of evidence does
not have the same probative value.
Medical evidence is generally required to establish a medical
diagnosis or to address questions of medical causation; lay
assertions of medical status do not constitute competent
medical evidence for these purposes. Espiritu v. Derwinski,
2 Vet. App. 492, 494 (1992). However, lay assertions may
serve to support a claim for service connection by supporting
the occurrence of lay-observable events or the presence of
disability or symptoms of disability subject to lay
observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a);
Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see
Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006)
(addressing lay evidence as potentially competent to support
presence of disability even where not corroborated by
contemporaneous medical evidence). Competency must be
distinguished from weight and credibility, which are factual
determinations going to the probative value of the evidence.
Rucker v. Brown, 10 Vet. App. 67, 74 (1997).
In this case, X-rays of the right shoulder in September 1974,
January 1975, and January 1978 all disclosed that no
arthritis was present in the Veteran's right shoulder. There
was similarly no evidence of a fracture of the right
shoulder. This evidence establishes that degenerative
arthritis of the right shoulder was not present in service,
or within a year thereafter. Moreover, the VA examiner
concluded, in October 2007, that arthritis of the right
shoulder was not caused by or the result of active duty.
This evidence outweighs his lay statements regarding service
onset. In this regard, the Veteran is not competent to
diagnose arthritis, and while he can report symptoms, the VA
examiner considered those symptoms in determining arthritis
was not due to service.
The question of secondary service connection requires medical
evidence, and the VA examination in November 2005 found that
degenerative arthritis of the right shoulder was not related
to service-connected femur fracture residuals, and the VA
examination in August 2008 determined that it was not related
to service-connected degenerative joint disease of the
lumbosacral spine, knees, or right hip. There is no
competent evidence which contradicts this medical evidence.
In this regard, although the Veteran states that his
arthritis of the right shoulder was linked to other service-
connected arthritis in February 2008, the treatment records
do not confirm this.
In sum, the presence of arthritis, and its relation to
arthritis of other joints, is a medical determination, beyond
the Veteran's competence as a layman. The medical evidence,
which considered the Veteran's statements regarding the
history of his symptoms, establishes that degenerative joint
disease of the right shoulder was not present until several
years after service, and that it is unrelated to service, or
to service-connected right femur fracture residuals, or to
degenerative joint disease of the knees, right hip, or
lumbosacral spine. As the preponderance of the evidence is
against the claim, the benefit-of-the-doubt does not apply,
and the claim must be denied. 38 U.S.C. § 5107(b); see Ortiz
v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v.
Derwinski, 1 Vet. App. 49 (1990).
ORDER
Service connection for degenerative arthritis of the right
shoulder is denied.
____________________________________________
MICHAEL A. HERMAN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs